Mr. Stuart S. Mukamal, Assistant City Attorney, City of
Milwaukee, City
Hall, 200 East Wells Street, Milwaukee, Wisconsin 53202-3551,
appearing for the Respondent.

FINDINGS OF FACT, CONCLUSION OF LAW AND
ORDER

On August 6, 1987 the Milwaukee Teachers' Education Association filed a
complaint with the Wisconsin Employment Relations Commission, alleging that the
Milwaukee Board of School Directors had violated Sec. 111.70, Wis. Stats., by
insisting upon the inclusion of an illegal layoff clause in their then-current
collective bargaining. The parties agreed for a considerable time to defer
proceeding on this matter, choosing instead to process to decision a parallel
declaratory ruling proceeding involving substantially the same issues (Case 194
of the same title). But on April 6, 1990 Complainant requested that this matter
be scheduled for hearing. The Commission thereafter appointed the undersigned
as Examiner; a motion to defer proceedings pending appellate review of the
declaratory ruling case was denied on May 29, 1990; and hearing was held in
Milwaukee, Wisconsin on June 11, 1990. A transcript was made, and briefs were
filed by both parties by July 24, 1990. But the parties agreed to reopen the
record when, about September 5, 1990, Judge William J. Shaughnessy of
Milwaukee
County Circuit Court issued his decision reversing the Commission's decision in
Case 194. The parties filed further briefs until October 23, 1990. The
Examiner, having considered the evidence and arguments and being fully advised
in the premises, makes and issues the following Findings of Fact, Conclusions of
Law and Order.

FINDINGS OF FACT

1. That in Case 194 the Commission made the following Findings of Fact,
here numbered 2 through 7 and therein numbered 1 through 6:

2. That the Milwaukee Board of School Directors, herein the Board, is
a municipal employer having its principal offices at 5225 West Vliet Street,
Milwaukee, Wisconsin.

3. That the Milwaukee Teachers' Education Association, herein the
Association or the MTEA, is a labor organization having its principal offices at
5130 West Vliet Street, Milwaukee, Wisconsin; and that the Association is the
collective bargaining representative for certain professional employes of the
District including teachers and social workers.

4. That since 1981, the collective bargaining agreements between the
Board and the Association have contained the following provision:

All layoffs shall be based on inverse order of seniority within
qualifications as set forth in the following procedures provided that the racial
balance of schools is not distributed.

that this provision was first included in a collective bargaining agreement
between the parties pursuant to an interest arbitration award; and that as to
this disputed provision the arbitrator's award stated:

The Racial Balance Criterion

Issue

The MTEA final offer provides that "All layoffs shall be
based
on the
inverse order of seniority within certification/licensure ..." The offer does
not include race as a factor in identifying teachers for layoff.

The Board's final offer provides that "All layoffs shall be
based
on
inverse order of seniority ... providing that the racial balance of schools is
not disturbed."

Position of the Parties

MTEA Position

The MTEA final offer enables the District to comply with the
Federal Court
Faculty Desegregation Order even though the Court indicated the Order would not
affect the method to be utilized in the event of layoff.

If there were no racial exemption in the layoff procedure, it is
clear from
the evidence introduced by both parties that the overall percentage of Black
faculty members in the District would not be significantly affected. In fact,
in no example cited by either party was the overall percentage of Black teachers
in the District reduced by more than .65%. Therefore, there is no demonstratable
need for any exemption from layoff based upon racial considerations.

A loss of less than one percent of the Black teachers in the
District will
still allow the District to easily meet the racial balance ranges set by the
Federal Court.

In analysis of 97 comparable school districts by geographic
location, size,
and other criteria indicates that the large majority of such districts do not use
either race or affirmative action as a basis for selecting teaching employees for
layoff.

During the entire process of negotiations, the Board never
proposed
anything that would indicate that the number of Blacks to be laid off in the
faculty would not occur in an amount greater than their present representation,
which is the current Board position. The Board has therefore violated ground
rule 11 by never presenting in writing and negotiating what it now says its final
offer means.

The Board in incorrect in asserting that Black teachers are
concentrated
near the bottom of the seniority list. In fact, in all of the hypothetical
layoffs introduced by both parties, where race was not considered, the overall
impact of such layoffs on the racial composition of the teachers would be
negligible.

Board Position

It is reasonable and appropriate to structure the layoff
procedure
so that
the percentage of Black teachers employed by the System is not adversely
affected.

The MTEA proposal would permit a layoff to ignore the
impact
on the racial
breakdown of the faculty. On the other hand, under the Board's proposal, layoffs
of Black teachers would not occur in an amount greater than their present
representation in the faculty.

The Board's Affirmative Action Policy Statement for
Personnel
indicates
that it is the Board's objective "to achieve a staffing pattern which is
reflective of our community." This is defined as meaning a staffing pattern in
which the percentage of Black teachers lies between the Black population of the
City of Milwaukee, which is approximately 23 percent, and the percentage of Black
students in the system, which is approximately 47 percent.

It is highly desirable to have an adequate representation of
Blacks on the
school faculty, especially in view of the desegregation process in which the
school system is presently involved. Adequate representation of minorities helps
dispel myths regarding racial inferiority and confidence. It provides positive
role models for all students. It eases the adjustment to desegregation of
minority students, their parents, and majority teachers. It also helps provide
a multi-cultural curriculum. Moreover, it is important that the representation
be in sufficient numbers so that Black teachers can exercise power and influence
in the System.

Although the Federal Court Order does not deal with the
overall
system-wide
percentage of teachers who are Black or white, the potential for litigation in
the event the proportion of Black teachers declines is clear.

Black teachers are concentrated near the bottom of the
seniority
list, and
therefore, without special provisions being made to allow for the consideration
of the racial composition of the group of employees that are to be laid off, the
overall percentage of Black teachers in the District could drop as much as one-half of a
percentage point, or greater.

Increasing the percentage of Black teachers in the system is a
high
priority of the Board. The percentage of Black teachers must continue to rise
if the staffing pattern is to be reflective of the racial composition of the
student population and the population of the City of Milwaukee.

An analysis of the experience in comparable Districts
indicates
that those
which do not consider race or affirmative action in order of layoffs are in
communities which have negligible Black populations and few Black teachers. On
the other hand, Wisconsin communities with significant Black populations and
other communities of similar size and demographic makeup often incorporate race
or affirmative action in their layoff decisions.

Although it is true that the Federal Court Order under which
the
District
is operating could be followed even if the MTEA proposal were adopted, this fact
is irrelevant to the issue since that is not the objective the District is trying
to accomplish. The objective the Board is trying to achieve is that of
increasing the percentage of Black teachers in the system so that it is better
reflective of the community. To achieve that goal, any drop in the employment
of Black teachers due to layoff which results in a decline of the overall
percentage of Black teachers cannot be tolerated.

Discussion

On its merits, the Board's final offer on this issue is the more
reasonable
of the two. In so concluding, the undersigned is relying primarily upon the
following statutory criterion: The interests and welfare of the public.
Although it is apparent that any layoff occurring in the near future which did
not consider race as a legitimate criterion to be utilized in identifying the
population to be laid off would not have a significant harmful effect on the
overall percentage of Blacks on the District's faculty, the same conclusion would
not necessarily apply in the more distant future as the percentage of Black
teachers in the District continues to grow and as a larger percentage of Black
teachers will be the least senior teachers in the System. Thus, a decision must
be made on this issue based not only on past and current experience, but also
upon the expectation that the District's affirmative action objectives will be
given high priority in the future staffing of the District's schools. Those
objectives, as set forth in the District's arguments, are both meritorious and
commendable. In the undersigned's opinion, the need for such an affirmative
action program in the District, with its history of litigation on the racial
integration issue and with its multi-racial composition, cannot be reasonably
questioned. The problems related to the achievement of those objectives are no
less important during periods of retrenchment than they are during periods of
growth. Thus, consideration of race in the identification of employees for
layoff is legitimate, and the District's final offer, particularly when it is
construed in the manner described by the District in the hearing, is clearly the
more preferable of the two positions on this issue.

In so deciding this issue, it is important to note that the
District
clearly indicated in the arbitration hearing that in implementing the provision
regarding racial balance, it intends to first identify the population to be laid
off without giving consideration to the race of the identified population; and
only after the population to be laid off is finally identified, which will occur
after bumping has taken place will the racial composition of the population be
laid off be analyzed. If the percentage of Blacks in said population exceeds the
overall percentage of Black teachers in the system at the time, as reflected in
what has been referred to as an E.E.O. 5 Report, the most senior Black teachers
identified for layoff will be exempted and replaced by the least senior non-Black
teachers with similar certification/licensure and other qualifications where
relevant. The number of Black teachers to be exempted will be determined by the
District's stated objective not to reduce the overall percentage of Black
teachers in the system by virtue of the layoff.

While it is true that the above explanation was not
communicated to the
MTEA during the negotiation or mediation process, there was ample opportunity for
both parties to obtain full explanations as to the meaning of the other party's
proposals during the process. The parties' mutual failure to fully communicate
their intent with respect to specific proposals, including the definition of all
ambiguous terms utilized, cannot fairly be construed as a violation of the
parties' ground rules regarding the negotiation of the contents of their final
offers.

The undersigned's conclusion with respect to this issue is not
based upon
the legality of either party's position, but instead, is based upon the merits
of the District's arguments that its affirmative action goals are just as
legitimate when applied to this issue as they are when applied to all other
issues in the operation of the District.

Lastly, although it is clear that consideration of race is not the
norm in
layoff plans in public education, the consideration of race in such plans is less
unusual particularly in larger multi-racial communities. Furthermore, in the
undersigned's opinion, it is the responsibility of the parties in such
communities to address this issue through the use of voluntary mechanisms, even
though it is difficult and controversial, and even though there may be sparce
(sic) comparable precedent. Such voluntary agreements are clearly preferable to
the lengthy, disruptive, complex, and expensive litigation which the parties in
this relationship have heretofore experienced.

5. That in September, 1981, following issuance of arbitration award
referenced in Finding of Fact 3, the Board sent the Association the following
letter:

This letter is to inform you that we must contact 20 school social
workers
in accordance with the Yaffe award concerning Part XII of the contract between
the Milwaukee Board of School Directors and the Milwaukee Teachers' Education
Association and notify them that they are laid off in accordance with that award.

This letter commences the five days' notice to the Milwaukee
Teachers'
Education Association of these circumstances of layoff and will be followed in
five days by individual letters to the affected school social workers. Copies
of the correspondence to affected school social workers and the seniority list
of school social workers upon which these decisions are based are enclosed for
your review.

It should be noted in accordance with the provisions maintaining
racial
balance, a maximum of three black school social workers are included in the list
of those to be laid off. To include more black social workers would involve the
layoff of a percent greater than 17.4%, the current EEO-5 ratio of record for the
1981-82 year.

That thereafter the Board proceeded to layoff social workers represented by the
Association; and that because of the contract language in dispute herein, one
hispanic social worker and one white social worker were laid off while two less
senior black social workers were retained.

6. That in 1982, the Board laid off teachers represented by the
Association; and that because of the contract language in dispute herein, three
white teachers were laid off while three less senior black teachers retained
their employment.

7. That the Board has never asserted that it has discriminated against
black applicants for positions within the MTEA bargaining unit; that there has
been no administrative or judicial determination that the Board has discriminated
against black applicants for positions within the MTEA unit; and that this record
does not contain any convincing evidence of prior discrimination against black
applicants for positions within the MTEA unit.

8. That the Board has continued to insist upon the inclusion of the
racial balance layoff clause in its collective bargaining to date.

9. That on April 3, 1989, in Case 194 of the same title the
Commission
found that the racial balance layoff clause was a prohibited subject of
bargaining within the meaning of Sec. 111.70(1)(a) and (3)(a)4, Stats.

10. That on or about September 5, 1990, Judge William J.
Shaughnessy of
Milwaukee County Circuit Court issued his Memorandum Decision reversing the
Commission's decision in Case 194.

11. That both the factual basis and the legal principles underlying this
matter are identical to those ruled upon by the Commission and Circuit Court in
Case 194.

Based upon the foregoing Findings of Fact, the Examiner makes and issues
the following

CONCLUSION OF LAW

That the law of the case requires that the undersigned Examiner follow the
decision of the highest authority to have ruled on the identical facts and legal
principles in the parallel declaratory ruling proceeding.

Upon the basis of the foregoing Findings of Fact and Conclusion of Law, the
Examiner makes and issues the following

This matter is directly controlled in its outcome by the very closely
related declaratory ruling proceeding involving the same parties and facts
(Case 194). Prior to the issuance of the Court's Memorandum Decision, the sole
difference identified by either party between the substance of this proceeding
and the prior one was that, because the prior proceeding was a declaratory ruling
petition, no remedy for the Board's insistence upon inclusion of the disputed
contract clause could be sought. The Association wished to reactivate the
complaint proceeding without waiting to see if final court determination of the
legality of the racial balance clause would cause the complaint issue to
be settled. In a prior order denying motion to defer proceedings (Decision
No. 26437-A) I found the Board's reasons for contending that the complaint matter
should continue to be held in abeyance to be insubstantial. The record in this
case, however, consists almost entirely of documents and findings from the prior
interest-arbitration and declaratory ruling proceedings involving the same issue.
As there is little new conceptual content, the following explanation of the
parties' positions given by the Commission in the declaratory ruling proceeding
remains accurate (2) for this proceeding:

The MTEA

The race-conscious layoff clause violates the equal protection
clause of
the Fourteenth Amendment to the United States Constitution and thus should
appropriately be ruled void by the WERC pursuant to its statutory authority under
Sec. 111.70(4)(b), Stats. This case is controlled by the United States Supreme
Court decision in Wygant v. Jackson Board of Education, 106 S.Ct. 1842
(1986).
Subsequent to Wygant, the United States Court of Appeals for the Seventh
Circuit
(covering Wisconsin, Illinois, and Indiana) in an enbanc
decision, under
circumstances compellingly similar to that herein, followed Wygant and nullified
a similar public education seniority clause, Britton v. South Bend Community
School Corp., 819 F.2d 766 (1987).

In Wygant, the Supreme Court plurality held that
before a government
interest in a racial preference, such as an affirmative action layoff clause, can
be accepted as "compelling," there must be findings of prior discrimination by
that employer. Findings of societal discrimination will not suffice; the
findings must concern "prior discrimination by the government unit involved."
Wygant, 106 S.Ct. at 1847. In this case, it is undisputed there have been no
prior findings of race discrimination in hiring by the Board. In Wygant, the
Supreme Court was very sensitive to the dislocation and harm caused to workers
by layoffs as contrasted to the much less onerous burden of promotion or hiring
affirmative action programs. Further, the Supreme Court in Wygant required
employers, before undertaking affirmative action plans, to consider more narrowly
focused alternatives.

This clause would not even have been sustainable under the
Wygant dissent
because central to that analysis was an affirmative action layoff provision that
had been fully negotiated and agreed upon between all members of the collective
bargaining unit. That is, an affirmative action plan having the mutual and joint
endorsement of a majority of the union and the employer. SeeWygant, 106 S.Ct.
at 1858, 1860, 1866, and 1869-70. In this case, the MTEA did not agree to the
arbitrator imposed layoff clause.

The constitutional analysis and ratiodecidendi throughout Wygant, Regents
of the University of California v. Bakke, 438 U.S. 265 (1978) and Fire-fighters
Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984) is that reverse
discrimination and affirmative action programs in certain, although by no means
all, situations either harm workers who are innocent and/or provide remedial
affirmative benefits to parties who are unable to prove legally that they
individually have been victims of past discriminatory conduct by a particular
person or institution. This dual concept of identifiable minority victims in
fact and remedies at the expense of parties not shown to have been personally at
fault constitutes the tension over affirmative action and reverse discrimination.
This tension often surfaces in the contrast between (1) a vision of the federal
judiciary as an administrator of strictly neutral principles and (2) a vision of
the federal courts as one of a number of possible tools for achieving social
justice. The arguments supporting and opposing this tension have continued to
trouble courts and commentators. "(I)t is...clear that impressive arguments can
be marshalled under the Fourteenth Amendment and the civil rights statutes either
to uphold or to invalidate minority admission programs," Bell, Bakke, Minority
Admission, and the Usual Price of Racial Remedies, 67 Calif.L.Rev. 3, 18 (1979).

It is respectfully submitted that this case, based on the special
layoff
facts, scrupulously compels avoidance of this social/legal struggle because of
the clear precedent established in Wygant. Indeed the tension between the two
vantage points continues to this date but in the non-layoff arenas.
That is,
although the United States Supreme Court has upheld as constitutional the four
affirmative action programs coming to its docket after Wygant, Local 28
of the
Sheet Metal Workers' Intern. Assn. v. EEOC, 106 S.Ct. 3019 (1986), Local
93,
International Assoc. of Firefighters v. City of Cleveland, 106 S.Ct. 3063 (1986),
United States v. Paradise, 107 S.Ct. 1053 (1987), and Johnson v.
Transportation
Agency, 107 S.Ct. 1442 (1987); none of those cases involved the constitutionality
of affirmative action layoff plans. In fact, those decisions reaffirmed
Wygant
by noting Wygant involved layoffs whereas these subsequent cases involved
hiring
and/or promotion affirmative action programs. E.g., Local 28, 106 S.Ct.
at 3052.
Equally compelling is that those recent four affirmative action cases also
involved compelling findings of intentional employer race discrimination in
hiring and/or promotions. This critical constitutional factor is absent in this
case where the Board has argued previously (and always successfully) that it not
only never discriminated in hiring based on race but in fact undertook pervasive
and good faith affirmative action hiring efforts.

When examined under the strict scrutiny standard of the
Fourteenth
Amendment, as well as Title VII of the 1964 Civil Rights Act, the race-conscious
affirmative action layoff clause lacks any compelling or substantial government
interest, because there is no evidence of past teacher discrimination in hiring.
The policy reasons asserted by Board for its layoff clause provide an inadequate
predicate to give the clause a constitutional remedial purpose. Even if the
Board had established a compelling (or substantial) governmental interest, the
layoff clause is still invalid because it is not narrowly tailored to avoid
unnecessarily trammeling the rights of innocent teachers. These characteristics,
when coupled with the lack of a termination date and absence of waiver
provisions, also render the clause invalid under Wygant. For these reasons, the
MTEA urges this Commission to invalidate the arbitrator imposed layoff clause.

In attacking on constitutional grounds the layoff clause, the
MTEA has not,
other than by implication, set forth its agreement with certain affirmative
action concepts. As an important introductory matter, the MTEA agrees with the
words of Justice O'Connor, concurring in part and concurring in judgment, in
Wygant, 106 S.Ct. at 1853: "The court is in agreement
that . . . remedying past
or present racial discrimination . . . is a sufficiently weighty state
interest
to warrant the remedial use of a carefully construed affirmative action program."
The MTEA also agrees with the analysis in Wygant that "(n)o one doubts that
there
has been serious racial discrimination in this country." Id. at 1848 and that
where there is in fact prior discrimination by an employer, "it may be necessary
to take race into account." Id. at 1850. "It is now well established that
government bodies including courts, may constitutionally employ racial
classifications essential to remedy unlawful treatment of racial or ethnic groups
subject to discrimination." United States v. Paradise, 107 S.Ct. 1053, 1064
(1987) (plurality opinion).

The MTEA expressed its position and support early in these
proceedings; see
page 3 of its correspondence to Examiner Davis of May 26, 1987:

In this regard, it is to be noted that the
MTEA does not question the
racial criteria set forth in the assignment, transfer, and excessing sections of
the contract since those are carefully drafted to remedy the unlawful conduct of
the employer as found by the United States District Court. It is because of
express holdings by the United States Supreme Court that racial layoff quotas are
unlawful, that the MTEA finds it necessary to seek a declaratory ruling to
determine whether its present contractual language is unlawful.

Accordingly, the MTEA joins with the Board in advancing
agreement for the
continuation of affirmative action in hiring. "Appreciation of the facts about
seniority encourages a shift of attention from race-based layoffs to affirmative
discrimination hiring. The enlistment of black workers not only puts them in
jobs but also places then on the seniority ladder. There they accumulate service
with a firm, establish rights of recall during temporary layoffs, and eventually
secure the kind of tenure that may insulate them from job loss even if the
employer must institute a severe, long-term layoff." Fallon & Weiler,
Conflicting Models of Racial Justice, 1984 S.Ct. Rev. 1, 65.

In concluding, one sees not simply a United States Supreme
Court emerging
constitutional doctrine but rather what appears to be the concluding position of
the United States Supreme Court. The principles at play are the effective
remedial administration of statutory and constitutional mandates versus the
avoidance of harm to innocent parties. Indeed, Wygant, reaffirms the holding in
Firefighters Local Union No. 1784 v. Stotts that the latter principle will
normally prevail over the former when statutory language does not provide clear
answers. In practical terms, Wygant and Stotts demonstrate the
Supreme Court
is moving toward a compromise on affirmative action that (1) permits race-conscious
relief in the form of quotas and hiring goals, but (2) forbids race-conscious relief that
entails actual harm to individuals who did not participate
in the institutional discrimination at issue. The most recent Supreme Court
decisions on affirmative action confirm this trend without altering this analysis
of harm. SeeJohnson v. Transp. Agency, supra;
United States v. Paradise, supra.
At first blush, this compromise seems rational, especially considering the
special status accorded seniority systems by Sec. 703(h) of Title VII.

The Court is astonishingly clear in its position that affirmative
action
hiring quotas are permissible under the circumstances carefully delineated by the
Court but that layoffs implicate interests upon which neither Title VII nor the
Fourteenth Amendment permit infringement.

In response to the Board's arguments regarding "ripeness"
and
the propriety
of the Commission's ruling upon constitutional issues, the MTEA asserts that the
Commission has previously ruled upon said arguments.

. . .

The Board

It is the Board's position that because the Commission
possesses
neither
the jurisdiction nor the lawful authority to do so, the Commission must not even
reach the constitutional issues raised by the MTEA and must summarily dismiss the
petition. This stems from two premises: (a) that this matter is not presently
"ripe" for adjudication because no actual layoff or other factual context against
which the operation of the clause may be measured is currently pending, imminent,
or even contemplated; and (b) that the Commission, as a quasi-legislative agency
(and thus a judicial body), lacks authority to rule on questions of "pure"
constitutionality and/or to declare a provision of a collective bargaining
agreement to be unconstitutional.

Should the Commission erroneously conclude that it is
appropriate to rule
upon the merits of the MTEA's petition, the Board contends that the layoff
provision in dispute is not a prohibited subject of bargaining. The Board takes
issue with the MTEA assertion the Wygant requires a finding that the proposal
is
unconstitutional. In this regard, the Board asserts that the lack of a finding
of prior discrimination against black applicants for teaching positions is not
required by Wygant and thus is absolutely irrelevant to the issues raised by the
MTEA's petition. The Board also argues that Wygant is anything but "clear
precedent" upon which the Commission should rely. As to the operation of the
clause itself, the Board asserts that although "race-conscious," the actual
operation of the clause will depend upon the facts and circumstances at any given
time. Indeed, the Board asserts that the clause could conceivably favor white
teachers in certain circumstances. Thus the Board argues that the clause is both
"dynamic" in nature and deliberately and judiciously tailored to meet the
particular desegregation goals of the Board that have in turn been pursued over
the years in pain-staking and laborious fashion.

The Board alleges that the promotion of "racial diversity
among
faculty"
was found to be a constitutionally permissible rationale for a voluntary
affirmative action layoff program by Justice O'Connor in Wygant. The Board
contends that the promotion of such "racial diversity" is one of the five
separate rationales which supported the Board's original desire to incorporate
the clause in the collective bargaining agreement. Thus, while the remediation
of past discrimination in hiring by the employer may be one of many permissible
bases for the establishment or implementation of a voluntary affirmative action
layoff program, it is by no means the only permissible basis therefor.

The Board contends that the MTEA has attempted to draw a
spurious
distinction between the societal value of "affirmative action and hiring" as
opposed to "affirmative action in layoff." The Board asserts that the
distinction is ill-founded. The Board asserts that the clause in question seeks
to preserve the concept of "racial balance as applied to a particular population"
(i.e., the Board's faculty). The Board argues that the concept of faculty
"racial balance" is not only important in and of itself as a public policy
objective, but is also a necessary and specific component of the continuing Board
desegregation effort. The Board contends that removal of the clause from the
collective bargaining agreement would cripple the Board's ability to maintain its
adherence to faculty desegregation objectives during periods of retrenchment.

We have already ruled upon the Board's jurisdictional
argument
in our
earlier Order Denying Motion to Dismiss or Defer to Federal Court Jurisdiction.
In that Order we commented:

Section 111.70(4)(b), Stats., provides:

(b) Failure to bargain. Whenever a
dispute arises between a municipal
employer and a union of its employes concerning the duty to bargain on any
subject, the dispute shall be resolved by the commission on petition for a
declaratory ruling. The decision of the commission shall be issued with 15 days
of submission and shall have the effect of an order issued under s. 111.07. The
filing of a petition under this paragraph shall not prevent the inclusion of the
same allegations in a complaint involving prohibited practices in which it is
alleged that the failure to bargain on the subjects of the declaratory ruling is
part of a series of acts or pattern of conduct prohibited by this subchapter.

Here, the Association has advised the Board
that it believes the clause
in question 1/ is illegal and thus unenforcable (sic) and that pursuant to the
Savings Clause 2/ in the parties' agreement, the Board must bargain a legal
replacement provision. The Board has refused the Association's demand for
bargaining. In such circumstances we think it is clear that there is a
"dispute . . . between a municipal employer and a union of its employes
concerning the duty to bargain. . . ."

. . .

As to the Board's argument that this
matter would be more appropriately
deferred to the federal courts, we note that when we are confronted with
contentions that a matter is a permissive or prohibited subject of bargaining,
we are often of necessity obligated to examine external law, both statutory and
constitutional, to resolve the dispute. 3/ (footnote text 1/ and 2/ omitted)

As we continue to be persuaded by the rationale expressed
above, we
will make no further comment herein. 2/

Turning to the issue of "ripeness", in our earlier Order we
also
responded to a large extent to the argument made again by the Board herein. We
stated:

2/ The Board correctly noted that in City of
Cudahy, Dec. No. 9381 (WERC,
12/69), we declined to determine constitutional issues. However, that
case arose in the context of the declaratory ruling provision
contained in Chapter 227 under which, as we noted in Cudahy, the
exercise of jurisdiction is discretionary and limited to those rules
or statutes enforced by the agency. Here, once we determine that
there is a "dispute" under Sec. 111.70(4(b), Stats., we have
jurisdiction and must proceed to exercise same.

As to the Board's contention that a
"dispute" cannot exist until a
factual context involving actual layoffs exists, we find such an argument misses
the jurisdictional mark and is most appropriately considered as part of our
deter-mination on the merits of the dispute before us. The requisite
jurisdictional factual context has been established by the Association's demand
and the Board's refusal to bargain over the clause. We would also note that in
the majority of instances in which our Sec. 111.70(4)(b), Stats., jurisdiction
is invoked, we are asked to rule upon the parties' duty to bargain on proposals
which one side or the other seeks to place in a collective bargaining agreement.
In such instances, we are obligated to determine the parties' duty to bargain
over contract language which may never be "applied" in a factual context because
it may never even become part of a contract. Furthermore, it should be noted
that the MTEA asserts that the manner in which the clause in question has been
applied in the past provides ample guidance as to the clause's interpretation.

As indicated in the above quoted text, we are often obligated
to
proceed under Sec. 111.70(4)(b), Stats., in a "factual vacuum" as to the manner
in which a proposal has been interpreted. Nonetheless, in cases where we have
felt the record to be insufficient for us to definitively rule upon the status
of a proposal or a contract provision, we have so advised the parties and, if
necessary, taken additional evidence. Here, the Board in essence asserts that
until the clause actually functions in a teacher layoff context, it is
speculative as to whether the clause will even adversely affect non-black
teachers. We disagree. It is clear from the language of the clause itself and
from the manner in which it was applied in 1981 and 1982 layoffs that non-black
employes are subject to layoff because of their race. As the impact of the
clause is clear, 3/ we have an adequate record upon which to proceed to determine
whether the clause is constitutionally invalid.

It is undisputed that if the clause in question is
unconstitutional,
it is a prohibited subject of bargaining. Our role in this proceeding is to
determine and apply existing constitutional law to the clause in question. As
the parties have emphasized, personal views as to what the law should be play no
role in this proceeding.

In Wygant v. Jackson Board of Education, 106
S.Ct. 1842 (1986), the
Court was confronted with a clause strikingly similar to that at issue herein.
The Wygant clause stated:

3/ The Board argues that because other portions of the
layoff clause have
changed since the 1982 layoffs, the impact of non-black employes is
presently less than clear. We disagree. While the changes referenced
by the Board may change the manner in which the individuals facing
layoff will be identified, once the layoff pool is established the
clause continues to protect less senior employes because of their
race.

"In the event that it becomes necessary to
reduce the number of
teachers through layoff from employment by the Board, teachers with the most
seniority in the district shall be retained, except that at no time will there
be a greater percentage of minority personnel laid off than the current
percentage of minority personnel employed at the time of the layoff.

Thus, while the parties herein obviously disagree as to the
impact of
the Court's decision in Wygant, the Wygant decision clearly
controls the outcome
of this case. The task of deciphering Wygant for the purposes of the case
before
us is made easier by the presence of the two Seventh Circuit Court of Appeals
decisions - Britton v. South Bend School Corp., 819 F.2d 766 (1987) and
Janowiak
v. City of South Bend, 836 F.2d 1034 (1987). As these decisions constitute
post-Wygant law in Wisconsin, we will herein apply the interpretations given
Wygant
in these two cases.

In Janowiak, the Seventh Circuit Court of
Appeals
reviewed Wygant and
Britton and stated:

In Wygant, five Supreme Court Justices in
three separate opinions held
that a race-preferential layoff provision in a collective bargaining agreement
between school teachers and Jackson, Michigan violated the fourteenth amendment's
equal protection clause. Wygant, 106 S.Ct. at 1852. The provision, designed to
safeguard the City's affirmative action hiring goals, stated that in the event
layoffs were necessary, a greater percentage of minority personnel could not be
laid off than the current percentage of minority personnel employed. Wygant,
106 S.Ct. at 1845.

Because there was no majority opinion in Wygant, the Court did not
elaborate a clear constitutional standard applicable to all affirmative action
plans. We have already noted, however, that a "'lowest common denominator'
majority position can be pieced together" from the Wygant opinions. Britton v.
South Bend Community School Corporation, 819 F.2d 766, 768, (7th Cir. 1987). We
start with the benchmark standard agreed upon by the members of the majority (and
apparently, according to Justice O'Connor, by all members of the Court): (1) the
plan must be justified by a compelling government interest and (2) the means
chosen by the government must be narrowly tailored to effectuate the plan's
purpose. See Wygant, 106 S.Ct. at 1852 (O'Connor, J., concurring in part and
concurring in the judgment).

The remedying of prior hiring discrimination was clearly
recognized by
the Wygant Court as a "compelling government interest." As the
Janowiak Court
stated:

Justice O'Connor, the fifth member of the
Wygant majority, reserved the
question whether a racially preferential layoff plan designed "to correct
apparent prior employment discrimination against minorities while avoiding
further litigation" might ever be constitutionally permissible. See Britton, 819
F.2d at 769 (citing Wygant, 106 S.Ct. at 1854, 1857 (O'Connor, J., concurring in
part and concurring in the judgment)). Because she concurred in the judgment of
reversal on the narrowest ground, her opinion is critical to our determination
of Wygant's lowest common denominator holding and our disposition of the present
case. See id., 819 F.2d at 769.

Justice O'Connor agreed with the plurality that "remedying past or
present racial discrimination by a state actor is a sufficiently weighty state
interest to warrant the remedial use of a carefully constructed affirmative
action program," Wygant, 106 S.Ct. at 1853.

However, even where such a compelling government interest is
established, the
remedial means must be narrowly tailored. Thus, when remedying prior hiring
discrimination, a race-preferential layoff clause must seek to maintain minority
employment levels which are established by reference to the minority percentage
in the employer's work force and the percentage of minorities in the relevant
labor pool. As noted in Janowiak:

Thus, for our purposes, the lowest
common denominator holding of Wygant
is that a statistical comparison upon which an affirmative action plan is based
must compare the percentage of minorities in employer's workforce with the
percentage of minorities in the relevant qualified area labor pool before it can
establish the predicate past discrimination required to justify an affirmative
action remedy under the fourteenth amendment." We therefore hold that the City's
plan here runs afoul of the fourteenth amendment's equal protection clause and
that the district court erred in granting the City summary judgment. It is clear
under Wygant that, at a minimum, the statistical comparison proffered by the City
to justify its affirmative action program cannot focus on general population
statistics alone. The City's comparison does just that.

Thus, if the Board were herein premising the validity
of its race-preferential layoff clause upon the remedying of past hiring discrimination, the
clause would not pass constitutional muster because the percentage of black
teachers the layoff clause seeks to maintain is not related to a relevant labor
pool and thus the clause is not "narrowly tailored."

Here, the Board has never asserted that it seeks to remedy
past
hiring
discrimination with the race-preferential layoff clause. The record before us
contains no persuasive evidence of such discrimination. Thus, we must turn to
the rationale advance by the Board herein to determine whether it constitutes a
"compelling government interest" and, if so, whether the clause is "narrowly
tailored" to meet the interest.

As noted in the arbitrator's summary of the Board's argument
before
him, which is set forth in Finding of Fact 3 herein, the Board sought the
race-preferential layoff clause as a means of obtaining and maintaining an
"appropriate" percentage of black teachers as measured against the percentage of
black citizens in Milwaukee and the percentage of black student in the public
school system. The Board believed that the maintenance of sufficient numbers of
black teachers was desirable because: (1) positive role models would be provided
for black students; (2) myths of racial inferiority would be dispelled;
(3) desegregation efforts would be enhanced; (4) the viability of a multi-cultural
curriculum would be improved; and (5) black teachers would be more
likely to successfully exercise power and influence in the school system.

In Wygant, Justices Powell, Burger, Rehnquist,
White and O'Connor found
the governmental interests in providing "role models" 4/ and "remedying the
effects of societal discrimination" to be insufficiently "compelling" to pass
constitutional muster. The Court's holding in this regard is dispositive of
virtually all of the bases set forth by the Board in support of the layoff clause
in dispute herein. To the extent that the Board relies upon Justice O'Connors
distinction between "role models" and "racial diversity among faculty" 5/ it is
clear from her opinion that the Court was not reaching any conclusion as to the
magnitude of this separate interest.

However, even assuming that this interest were to be found
"compelling"
or that some separate educational policy interest can be refined from the Board's
stated justifications which would be found "compelling," we further believe the
clause would still be unconstitutional because it is not a "narrowly tailored"
to accomplish the "compelling" interest. 6/ In this regard, the record does

4/ We can understand and appreciate why a school board in
a racially
diverse district might well regard providing qualified racial "role
models" as essential to its ultimate objective or more effectively
educating its students, thus constituting a compelling governmental
interest. Nonetheless, it is clear to us from Wygant that a majority
of justices do not give this view any Constitutional credence. Hence,
we cannot.

5/ Justice O'Connor stated:

The goal of providing "role-models"
discussed by the courts below
should not be confused with the very different goal of promoting racial diversity
among the faculty. Because this latter goal was not urged as such in support of
the layoff provision before the District Court and the Court of Appeals, however,
I do not believe it necessary to discuss the magnitude of that interest or its
applicability in this case. The only governmental interests at issue here are
those of remedying "societal" discrimination, providing "role models," and
remedying apparent prior employment discrimination by the School District.

Justice O'Connor also stated as a preliminary
matter in her opinion:

Additionally,
although its precise contours are uncertain, a state
interest in the promotion of racial diversity has been found sufficiently
"compelling," at least in the context of higher education, to support the use of
racial considerations in furthering that interest. See, e.g., Bakke, 438 U.S.
at 311-315.

However, as the Bakke case
referenced in her opinion involved questions
regarding the "racial diversity" among students, her remark does not seem
directly probative of the constitutionality of a race-preferential layoff clause.

6/ The Board has made some reference to the desirability of
the disputed
clause as a means of continuing to remedy the racial discrimination in
the teacher assignment patterns found in Armstrong v. Board of School
Directors, 471 F.Supp. 827 (1979). However, as the Armstrong Court
did not impose any race-preferential layoff provision as part of its
remedy, as the Board admits that a layoff clause without a race
preference provision would still allow it to honor Armstrong, and as
the Court in Britton held that race-preferential layoff clauses are
not a "logical remedy" for assignment discrimination, any Board
argument based on Armstrong does not provide a persuasive basis for
finding this clause constitutional.

not contain any persuasive evidence which establishes why the
precise
percentage level of black employes which the clause protects based on each year's
EEO-5 report is essential to meeting any of the interests put forth by the Board.
Even assuming the need for such precision, the evidence placed before the
arbitrator in 1981 by the MTEA and the evidence herein as to the layoffs in 1981
and 1982 strongly suggests that the Board's aggressive hiring posture as to black
applicants is sufficient to maintain virtually the same percentage level of black
staff as has been produced through the protection of the race-preferential
clause. Thus, the record does not warrant the conclusion that the job loss for
non-blacks caused by the disputed clause has enhanced any of the interest
advanced by the Board herein. Indeed, when the clause functions as it did in
1981 to cause the layoff of a more senior hispanic employe and the retention of
a less senior black employe, it can reasonably be argued that the clause does not
promote "racial diversity among faculty," a "multi-cultural" curriculum,
empowerment of minority staff members or enhancement of desegregation.

Given the foregoing, we find the clause to be violative of the
Fourteenth Amendment rights of non-black employes and, as such, a prohibited
subject of bargaining.

The Court's Contrary Analysis:

On September 5, 1990 Judge Shaughnessy, in reversing the Commission's
decision, wrote as follows:

WERC and META contend that WERC properly found the
contractual
provision was unconstitutional under the Fourteenth Amendment and the United
States Supreme Court decision in Wygant v. Jackson Board of Education, 476
U.S.
267 (1986). The Board, however, submits that WERC erred in making its ruling
since the issue was not ripe for determination and because WERC violated the
separation of powers doctrine in making a judicial decision on the
constitutionality of the contract clause. In deciding whether WERC acted
properly, this court must inquire into the two issues presented by the Board.

In State ex. rel. Lynch v. Conta, 71 Wis.2d 662,
669, 239 N.W.2d 313
(1976), the Wisconsin Supreme Court set forth four requirements that must be met
in order to issue a declaratory judgment. The first requirement states, "There
must exist a justiciable controversy, that is to say, a controversy in which a
claim of right is asserted against one who has an interest in contesting it."
And the fourth requirement states, "the issue involved in their controversy must
be ripe for determination." As a result, the court must determine whether WERC's
declaratory ruling on the constitutionality of the lay-off provision was ripe for
determination, since a result, the court must determine whether WERC's
declaratory ruling on the constitutionality of the lay-off provision was ripe for
determination, since declaratory judgment is unavailable unless the issue is ripe
for determination. City of Janesville v. Rock County, 107 Wis.2d 187,
202,
319 N.W.2d 891 (1982).

In adopting the U.S. Supreme Court's decision on ripeness
made
in
Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507
(1967), the Wisconsin
Supreme Court stated: "The basic rationale of the ripeness doctrine is to
prevent courts, through avoidance of premature adjudication, from entangling
themselves in abstract disagree-ments . . . ." Lister v. Board
of Regents,
72 Wis.2d 282, 309, 420 N.W.2d 610 (1976). The Abbott
decision indicated that
ripeness turns on the fitness of the issues and the hardship to the parties if
the court withholds a determination. Abbott, at 149. A further requirement of
ripeness is an actual injury. "A substantial number of ripeness cases ask
whether the plaintiff has suffered harm or threat of harm that is 'direct and
immediate' rather than conjectural, hypothetical, or remote." Nichol, Ripeness
and the Constitution, 54 U. Chi. L. Rev. 153, 170 (1987).

In the case at hand, there were no pending plans for a lay-off
in
either the near or the distant future. In fact, there has not been a teacher
lay-off in the 140 year history of the Milwaukee Public Schools. However, WERC
and MTEA argue that the issue was ripe under sec. 111.70(4)(b), Stats., which
states: "Whenever a dispute arises between a municipal employer and a union of
its employees concerning the duty to bargain on any subject, the dispute shall
be resolved by the commission on petition for a declaratory ruling."

It is not sufficient to simply cite the statute the (sic) confers
the
authority upon WERC to make a declaratory ruling on any subject. This in itself
does not mean that the issue was ripe for determination. WERC's authority under
sec. 111.70(4)(b), Stats., is only conferred when the issue is ripe. City of
Janesville, at 202. As stated earlier, the standard for ripeness required
fitness of issues, hardship to the parties, and actual injury.

First, the determination of the constitutionality of the lay-off
provision should not be decided upon by an administrative body. Such issues are
solely within the province of the judiciary. Marbury v. Madison, 5 U.S.
(1
Cranch) 137, 2 L.ED. 60 (1803). As a result, the fitness question actually goes
to the Board's separation of powers argument which will be discussed below.
However, if WERC does not have the jurisdiction to decide upon the issue, it
certainly would not meet the fitness requirement. Second, there has been no
hardship to the parties. Since there has been no lay-off and there ar no plans
for one in the future, neither the Board nor MTEA have been affected by the
provision. This leads to the third requirement, actual injury. While it is not
necessary for a lay-off to have occurred, someone must be actually affected by
the provision.

Since the provision has never been implemented, it cannot be
said
exactly how it will work. The provision simply states that the racial balance
of the teachers at the schools must not be disturbed. It does not state that
white teachers must be laid off before black teachers. Such a provision would
actually affect the job security of the white teachers and an actual injury would
result. However, without an actual or pending lay-off, it would be pure
conjecture to say who would be injured by the provision.

It is the composition of the faculty that determines how the
provision
works. Today, there may be more white teachers than minority teachers. However,
this may not always be the case. The ratio of white to minority teachers is not
static. The make-up of the faculty at the point in time of a lay-off establishes
which parties would be affected under the provision. As a result, there has been
no actual injury to anyone without a lay-off or threat of lay-off.

The second issue presented by the Board is whether WERC
violated the
separation of powers doctrine in making a decision upon the constitutionality of
the contract clause. WERC contends that the issue falls within its jurisdiction
since it is primarily a matter of collective bargaining. Pursuant to that power,
WERC states that it simply applied the Wygant decision.

It is true that WERC has been given wide latitude in deciding
matters
regarding collective bargaining. WERC v. Evansville, 69 Wis.2d 140,
158 N.W.2d
688 (1975). However, the matter in the case at hand is not within WERC's
collective bargaining powers. Section 111.70(1)(d), Stats., defines collective
bargaining as "the performance of mutual obligation . . . to meet
and confer at
reasonable time, in good faith, with respect to wages, hours and conditions of
employment . . . ." In their briefs, WERC and MTEA do not
address the lay-off
clause as such a matter. Instead, they simply state the precedent cases that
recognize WERC's expertise in matter of collective bargaining. They do not
attempt to show how the lay-off provision affects wages, hours, or working
conditions. Instead, their main argument in regard to the provision treats the
matter as a constitutional matter.

Also, it was not simply a matter of applying the
Wygant decision. In
order to apply the decision, WERC had to form an interpretation. Since
Wygant
is not clear on its face, it cannot be simply applied as WERC asserts. This is
evidenced by the fact that both the petitioner and the respondent each submitted
briefs with very different interpretations of the Wygant decision. As a result,
it is clear that different interpretations can be made. And, it cannot be
applied to the case at hand without some branch of government interpreting the
case. Therefore, it is not simply an issue of collective bargaining. The real
issue is whether an administrative agency has the authority to interpret a U.S.
Supreme Court decision without violating the separation of powers doctrine.

In Glendale Prof. Policeman's Assoc. v.
Glendale,
83 Wis.2d 90, 100,
264 N.W. 594 (1978), the Wisconsin Supreme Court looked at WERC's ability to
decide upon the relationship between two Wisconsin statutes. The court stated
that this issue was "within the special competence of the courts rather than the
Commission (WERC), and therefore this court need not give great weight to the
arbitrator's determination of the issue." Id. at 101. The court also stated the
WERC is "primarily charged with administering secs. 111.70-77. Wis. Stats."
Id.
at 100. In a similar situation in City of Brookfield v. WERC, 87 Wis.2d
819,
275 N.W.2d 723 (1978), the court stated, "WERC should not be accorded the
authority to interpret the appropriate statutory construction . . . ."
It can
be inferred from these two cases that if WERC does not have the authority to
interpret statutory construction beyond its expertise in administering
secs. 111.70-77, Stats., it cannot interpret U.S. Supreme Court decisions and the
U.S. Constitution either.

WERC simply lacks the power to make determinations on
constitutional
issues. "Administrative boards and commissions have no common law power. Their
powers are limited by the statute conferring such powers expressly or by fair
implication." Nekoosa-Edwards v. Public Serv. Comm., 8 Wis.2d 582,
593,
99 N.W.2d 821 (1959). WERC has not either expressly or impliedly been granted
the authority to decide upon constitutional issues. In fact, our system of
government has not delegated the authority to administrative agencies to decide
upon matters of constitutional importance. Greene v. McElroy, 360 U.S.
474, 507,
79 S.Ct. 1400 (1959).

In one of WERC's own decision, WERC recognized its
inability
to issue
a declaratory ruling upon the constitutionality of barring supervisors from
joining unions. It stated, "There are judicial forums available which are better
suited to determine such constitutional questions." In the Matter of the Joint
Petition of City of Cudahy and International Association of Firefighters,
AFL-CIO, Local 1801, WERC Dec. No. 9381.

Furthermore, A Florida court found that separation of powers
"stands
as a permanent bar to administrative determination of fourteenth amendment
problems." Carrollwood State Bank v. Lewis, 362 So.2d 110, 114 (Fla.
Dist. Ct.
App. 1978). The court went on to say that constitutional issues cannot be
delegated to administrative bodies for determination. Id. While the Florida and
Wisconsin Constitutions are not identical, they both divide governmental powers
into three branches: executive, legislative and judicial. As a result, it is
reasonable to conclude that separation of powers in Wisconsin would work in a
similar manner in light of the argument stated above.

In conclusion, the court holds the WERC did not act within
its
powers
in issuing this declaratory ruling. The issue was not ripe for determination,
and it was not within WERC's authority to interpret matters of constitutional
importance. Accordingly, WERC's decision is vacated and reversed, in its
entirety, pursuant to sec. 227.56, Stats.

Arguments specific to the present proceeding

The MTEA

MTEA contends that under NLRB v. Wooster Division of Board Warner
Corp., (3)
the Commission clearly has jurisdiction to determine whether or not a bargaining
proposal is unlawful. MTEA argues that in a number of decisions, including City
of Greenfield(4) and Milwaukee
Board of School Directors(5) the
Commission has
found bargaining proposals unlawful based on its construction of statutes other
than Section 111. MTEA argues that it is an essential function of the Commission
to issue an appropriate cease and desist order where an illegal provision is
still part of a collective bargaining agreement. MTEA further argues that the
legality of the disputed layoff clause is ripe for determination because despite
the fact that no layoffs have been scheduled in the District since the issue
arose in 1987, layoff issues are best dealt with when persons on both sides are
most likely to be objective in their treatment of these sensitive issues, and a
period in which layoffs are unlikely is ideal for that purpose. MTEA further
notes that the Commission considered and rejected a related argument in the
declaratory ruling proceeding. MTEA argues that there is no rule requiring that
separate but related actions be suspended while a given proceeding is pending,
and that to allow this matter to be set aside further would unnecessarily delay
a final result.

MTEA has appealed the Court's decision, and it argues that that decision
was in error on a number of points. In relevant part, MTEA has argued since the
Court's decision that this matter stands independently of the declaratory ruling
proceeding and should be decided by the Examiner in terms consistent with the
Commission's analysis.

The Board

The Board contended initially that this proceeding constituted nothing more
than an MTEA demand for the Board to abandon its position in the circuit court
proceedings and surrender to MTEA's wishes. The Board contends that the
Commission erred in its decision that the clause was unlawful, and that the Board
has the right to invoke judicial review in support of a provision which it
considers constitutional. The Board contends that an additional and
unjustifiable penalty would be applied to the Board by a finding that the clause
must be removed forthwith. The Board further argues that MTEA has not fulfilled
the requisite contractual procedure for severing an allegedly illegal clause from
the contract, because it has not offered to enter into immediate negotiations for
the purpose of arriving at a replacement, as required by the agreement. The
Board contends that the "low pressure" of the current layoff environment is an
irrelevant consideration in determining ripeness, and that neither this matter
nor the declaratory ruling procedure could be considered ripe for adjudication
unless and until an actual layoff occurs. The Board contends, in sum, that
merely because the opposing party contends that a clause should be deleted from
the contract as allegedly unlawful, it has no obligation under Sec. 111.70 to
accede to that demand without contesting it through the appropriate channels,
including the Commission and courts. The Board contends that invocation of the
prohibited practice mechanism is improper in the present context.

Following the Court's decision, the Board argued in addition that the
Examiner is bound by the Court's determination as a matter of law.

DISCUSSION

I agree with the last of the Board's contentions, and find that this matter
must now be treated as governed by the "law of the case."

Contrary to the Association, I can find nothing in the record that would
justify treating this matter as independent of the parallel declaratory ruling
proceeding. The Association's arguments to that effect are directly undercut by
two factors. One is the complete absence of any new circumstance of fact, such
as an actual layoff, since the completion of the factual record relied on by the
Commission and Court alike in the declaratory ruling proceeding. The other is
the paired statements of the parties' representatives at the hearing, in which
one point clearly agreed on was the relationship between the two cases. (6) There
is nothing in either of the parties' arguments since the Court's decision to make
the statements noted above either untrue or no longer relevant; all that has
changed is which party is favored by the most recent decision.

The primary issue squarely posed -- not by the Court's decision
perse but
by the fact of a pending appeal of that decision by both the Association and the
Commission -- is whether, as an Examiner employed by the Commission, I am
obligated to follow the Commission's view; to follow the Court's view; or to
render an original opinion on the merits of this case.

I conclude initially that an original opinion on the merits would be
improper, in the perhaps-unique circumstances of this case. Here there is no
colorable claim that staredecisis should not apply because of
alleged
differences in the facts between the prior case and its successor. For the
reasons discussed above, no two cases more closely related are likely to be
found. Thus the cases cannot be distinguished, and any decision commenting on
the merits of the underlying claims would inevitably assume something of the
character of an attack from below on the reasoning of one or the other of the two
conflicting higher tribunals. Due deference to higher authority thus weighs in
favor of restraint.

The operative principle accordingly becomes that of the "law of the case."
A particular form of staredecisis, this principle holds that
"The decision,
judgment, opinion or rulings on former appeal or writ of error becomes 'law of
the case' (and is binding) on subsequent proceedings or trials (between the same
parties) in trial court." (7)

This doctrine applies to decisions on legal questions, (8) but not to new
questions of fact. (9) As noted above,
there are no differences of fact between
the two cases here. The doctrine as defined in Black's also "includes all errors
relied on for reversal, whether mentioned in the court's opinion or not, and all
errors lurking in the record on first appeal, which might have been, but were
not, expressly relied on" (10) as well as "all
questions involved in the former
appeal, whether or not expressly mentioned in the opinion, unless expressly
reserved." (11) Finally, the doctrine is
generally deemed applicable whether the
former determination is right or wrong. (12) While there are cases to the
contrary arguing that if the prior decision is "unsound" it should not be
followed, in the present circumstances it would be an act of arrogance for an
examiner to venture an opinion upon the soundness of two higher tribunals'
constitutional interpretations of the identical facts. This is particularly true
where an appeal has already invoked the authority of the Court of Appeals.

For these reasons, I conclude that this matter can most properly be decided
on the quite technical grounds of the "law of the case." In this instance that
requires that I follow the Court's decision, for despite concurrent jurisdiction
there is no question that the Court is the higher authority. Notably, in this
instance, there is no danger that disposition of the case at this level on
technical grounds will have the effect of denying either party a full decision
on the merits. It is obvious that the matter will not end here; that the
Commission and Court will in turn treat this case consistent with their
respective constitutional views on the parallel case; and that the matter will
ultimately be determined consistent with the pending appeals action.

Dated at Madison, Wisconsin this 13th day of November, 1990.

WISCONSIN EMPLOYMENT RELATIONS
COMMISSION

By

Christopher Honeyman, Examiner

1. Any party may file a petition for review with the
Commission by following
the procedures set forth in Sec. 111.07(5), Stats.

Section 111.07(5), Stats.

(5) The commission may authorize a commissioner or examiner to make
findings and orders. Any party in interest who is dissatisfied with the
findings or order of a commissioner or examiner may file a written
petition with the commission as a body to review the findings or order. If
no petition is filed within 20 days from the date that a copy of the
findings or order of the commissioner or examiner was mailed to the last
known address of the parties in interest, such findings or order shall be
considered the findings or order of the commission as a body unless set
aside, reversed or modified by such commissioner or examiner within such
time. If the findings or order are set aside by the commissioner or
examiner the status shall be the same as prior to the findings or order
set aside. If the findings or order are reversed or modified by the
commissioner or examiner the time for filing petition with the commission
shall run from the time that notice of such reversal or modification is
mailed to the last known address of the parties in interest. Within 45
days after the filing of such petition with the commission, the commission
shall either affirm, reverse, set aside or modify such findings or order,
in whole or in part, or direct the taking of additional testimony. Such
action shall be based on a review of the evidence submitted. If the
commission is satisfied that a party in interest has been prejudiced
because of exceptional delay in the receipt of a copy of any findings or
order it may extend the time another 20 days for filing a petition with
the commission.

6. The Board's position expressed at that time was
"The Board views this case
as indistinguishable from the other case . . ." (TR. p. 17.) The
Association replied: "I agree . . . the cases are virtually identical,
the Declaratory Ruling and this one. The only reason we are here is
because the Declaratory Ruling has no remedy and we feel, this has been
filed over three years now, about three years now. We do need that remedy
and that's the difference." (TR. p. 21.)